Qisas - Equality in Islamic Penal Law

Issues Relating to Allah's Statement: "And there is [a saving of] life for you in al-Qisaas (the

Law of Equality in Punishment), O men of understanding, that you may become righteous.” (2: 179)

Dr. Abdul-Azeez ibn Salih Al-Ubaid1

1 Professor in the Department of Tafseer, Faculty of The Holy Qur'an, Islamic University,

Madeenah.

The Law of Equality (Qisaas)

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Introduction

All praise belongs to Allah; we praise Him, seek His assistance and forgiveness; we seek refuge in Allah from the evil within ourselves and from our evil deeds. Whomever Allah guides, there is no one to misguide him; and whomever Allah misguides, there is no one to guide him. I bear witness that none is worthy of worship except Allah alone, without any partners, and I bear witness that Muhammad is His servant and messenger. May Allah bestow his peace and blessings upon him, his pure family and companions and all those who follow them in righteousness until the Day of Reckoning.

It goes without saying that looking at any Qur'anic verse, reflecting on it and pondering over it will certainly pave the way for fully comprehending it and revealing its benefits and hidden secrets. By looking at Allah's statement: "And there is [a saving of] life for you in al-Qisaas (the law of equality in punishment), O men of

understanding, that you may become righteous” (2: 179), which we have always heard since we were children upon the implementation of the law of qisaas in this country, I have deemed it appropriate to write a research paper and entitle it Issues Relating to Allah's Statement: "And there is [a saving of] life for you in al-Qisaas (the law of equality in

punishment), O men of understanding, that you may become righteous.”

The reason for this is crystal clear: safety and security is a natural human requirement which is also approved by the Islamic law that everyone without exception seeks to achieve. It is for this reason that governments and organizations lay down rules and regulations and even change them later with a view to maintaining security. Allah's Law, however, which is perfect and absolute never changes, as the Qur'an states, "Then is it the judgement of [the time of] ignorance they desire? But who is better than Allah in judgement for a people who are certain [in faith]?" (5:50)

The word 'ignorance' mentioned in this verse does not necessarily refer to the pre-Islamic era; rather it includes all forms of creeds and practices that contravene Islam at all times and places. Given the fact that safety and security constitute the key to progress for nations and

Dr. Abdul Azeez Ibn Saleh Al-Obaid

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civilisations and the main reason behind development and felicity, how can an intelligent person seek them where they are not supposed to be? For doing so will certainly help spread fear and bring about chaos.

The Sharee'ah, or Islamic law, came with punishments that perfectly suit crimes and serve to eradicate them. Qisaas, or the law of equality in punishment, aims at achieving both public and private interests, establishing justice among all members of society and securing human life in order for safety to prevail and fear to be eliminated. As a matter of fact, killing and fear has spread in many Muslim societies because the governments in these countries have not implemented the law of equality in punishment.

I pray to Almighty Allah to make the present work sincere to Him alone and to make it beneficial to whoever reads it. Given that we are all subject to make mistakes, whatever right in this work is only from Almighty Allah, and any mistakes in it are from Satan and me alone. I seek Allah's forgiveness and I turn to Him in repentance. Success in my task can only come from Allah; in Him I trust, and to Him I turn. The rationale for Choosing this Subject 1. To provide a thorough explanation of the glorious verse under

study and to reveal its secrets as much as possible

2. To highlight the magnificence of the legal system in Islam 3. To highlight the position that qisaas occupies in Islam 4. To defend the position of the Kingdom of Saudi Arabia that

implements the punishment of qisaas 5. To refute the past and present misconceptions relating to qisaas 6. To urge Muslim governments to implement this form of

punishment Methodology adopted

In writing the current paper, I followed the following methodology: 1. I used the Othmani script in the writing of the Qur'anic verses and I

mentioned the surah in which they appear. 2. If the hadeeth quoted is in both Saheeh Al-Bukharee, Saheeh Muslim or

in only one of them, I attribute it to them; and if it is not in either book, I cite its source along with scholars' views on it.

3. Whenever I say so-and-so said, I quote him by repeating exactly whatever they have said or written.


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4. Whenever I mention the source in the footnote without mentioning its author, I mostly write the meaning of what he said and not the exact words.

The Research paper I have divided the paper into an introduction, six main topics and a

conclusion. They are as follows: o First topic: The Verse under Study in Context o Second Topic: Interpretation of the Verse o Third Topic: Grandeur and Eloquence of the Verse o Fourth Topic: The Person Entitled to Impose the Punishment of

Qisaas o Fifth Topic: Positive Effects of Implementing Qisaas Punishment in

Society o Sixth Topic: Misconceptions about Qisaas o Conclusion: Includes the most important findings achieved in this

research


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TOPIC ONE The Verse in Context

Allah the Almighty says, “O you who believe! Qisaas (the law of

equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother [or the next of kin] of the killed against blood money, then adhering to it with fairness and payment of the blood money to the heir should be made in fairness. This is alleviation and a mercy from your Lord. But whoever transgresses the limits (i.e. kills the killer after taking the blood money), he will have a painful punishment." (2:178)

Allah the Almighty informs us in this verse that He has prescribed

qisaas for us and has made it obligatory regarding those killed; therefore,

the next of kin of the slain should not harm other than the culprit, as was the practice in the pre-Islamic era—Jaahiliyyah.2 For the blood of the slain is equal to that of the killed, and thus only the culprit should be put to death.

The verse also makes it clear that if the next of kin of the slain pardons the killer and are satisfied with the blood money, then they can demand the blood money in kindness without asking for more than the killer or his family can afford. The killer, on the other hand, must pay the blood money in full and without resisting or delaying payment.

2 At-Tabaree reported from Qatadah regarding this verse: "People in Jaahiliyyah were

known for their injustice and obedience to Satan. It was common practice that if a slave from a particular tribe killed another slave belonging to a powerful tribe, people from the latter tribe would say, 'We will kill only a freeman for him,' due to their superiority over the others; and if a woman among them was killed, they would say, 'We will kill only a man for her.' So Allah revealed this verse, informing them that a slave can only be killed for a slave and a female can only be killed for a female, and warning them against injustice." (Tafseer At-Tabaree, 3/96)


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Almighty Allah then informs us that such legislation of alleviation is meant as a mercy to the Muslim Ummah.3

Allah the Almighty then warns those who transgress the limits—after the execution of the legal judgement of qisaas—against a painful punishment. Transgression of limits can take different forms: Some relatives of the culprit could be assaulted after the execution of the judgement of equal punishment; the culprit could also be assaulted after the relatives of the slain have agreed to accept the blood money; or his wealth could be encroached upon after the right to blood money has been waived. This warning comes to nip trials and tribulations in the bud and eradicate blood feuds in society.

Allah the Almighty then says, "And there is [a saving of] life for you in qisaas, O men of understanding, that you may become

righteous.” ( 2:179) This verse contains the wisdom behind the punishment of qisaas, in

that it serves to save lives and deter criminals.4 In fact, it provides justification for the execution of qisaas and sheds light on the wisdom

behind it.5

3 This is contrary to the common practice in the previous nations, as Abdullah ibn Abbas (may Allah have mercy on him) narrated, "Qisaas was prescribed for the children of Israel, but the diyyah (blood money) was not ordained for them." (Al-Bukharee).

Qataadah also said, "Blood money is a mercy with which Allah has blessed the [Muslim] nation; He made it lawful for them but was not lawful for the nations before them. The followers of the Torah (i.e. the Jews) had only [two choices:] Qisaas or forgiveness; the followers of the Injeel (i.e. the Christians) had only forgiveness which they were commanded to observe; for this Ummah, Allah has made them to choose between

equality in punishment, forgiveness or blood money, whatever they desire. He made any [choice] lawful for them."(At-Tabaree, 3/133 and Ibn Abu Haatim, 1/296). Ibn Abu Haatim said, "Similar interpretations have been reported from Sa'eed ibn Jubair, Muqaatil ibn Hayyaan and Ar-Rabee' ibn Anas." 4 Tafseer As-Sa'dee, p. 83. 5 Tafseer Al-Manaar, p. 1/13.


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TOPIC TWO Interpretation of the Verse

Linguistically, qisaas means "tracking the footsteps"6 as in Allah's statement, "And she said to his sister, 'qusseeh,'" that is, follow him; it also means narrate stories, as Allah says, "We naqussu (relate) to you [O

Muhammad [the best of stories." (12:3) Al-qaass refers to the one who narrates a story as well as to the act of cutting.7

Technically, it means "the act or a similar act which a victim or his next of kin does to a culprit".8 It has also been defined as "doing to the criminal the same thing that has been done to the victim, be it murder, amputation or wounds".9 This definition includes life and matter short of life because the word 'qasas' in the verse is general, and so must be kept as such, as Almighty Allah says, "And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for [other] injuries equitable retaliation." (5:45) Here, Almighty Allah mentions the things that are done with regard to qisaas, namely, killing, amputating and wounding.

The word 'life' in the verse has yielded two different interpretations: 1. "Life for people in this life": This is the view of the majority of

Muslim scholars. The idea here is that Allah has prevented people from assaulting others through qisaas, as the person who intends to assault another person will be deterred from doing the action because he knows he will be subject to punishment; also, once the law of qisaas has been executed, people will be deterred from assaulting others. This is how the punishment of qisaas provides 'life'

for people. 2. "Life of the culprit in the hereafter": The reason for this is that if the

culprit has received his punishment in this life, he will not be

6 Mu'jam Maqqaayees Al-Lughah. 7 Tahdheeb al-Lughah, and Lisaan al-Arab 8 Ar-Rawdh Al-Murappa', 7/195. 9 Tafseer Al-Khaazin, 1/148; fath Al-bayaan, 1/286.


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punished for his crime in the hereafter…and if he has not received it in this life, he will certainly be punished in the hereafter.10 However, the word "life" in the verse can mean both; for in this life

people will lead a good life, being free from worry or fear of being assaulted, and even if they are assaulted, the culprit will be subjected to the law of qisaas; they do not need a certain security force as they are protected by the Law of Allah and the authority of those who implement His laws among His slaves. Therefore, if a Muslim assaults another person, he should repent to Allah and give himself up for the qisaas punishment to be inflicted on him; otherwise, he will be punished for his crimes on the Day of Judgement, as evidenced by the saying of the Prophet (peace be upon him), "The first [thing] that will be decided among people on the Day of Judgement will pertain to bloodshed."11

The Arabic expression for what has been translated here as "men of understanding" is 'ulul-albaab'. Albaab (singular: lubb) refers to the pure sound minds that are free of all kinds of blemishes. Such minds are called as such because they are the purest things a human being can possess. It is for this reason that Allah, in many a verse, attaches commandments and rulings—which can only be comprehended by the pure minds—to people of understanding, as Almighty Allah says,

"He grants wisdom to whomever He pleases; and whomever has been granted wisdom has certainly been granted much good a. But none will grasp the message except men of understanding." (2:269)

He also said, "Indeed, in the creation of the heavens and the earth and the

alternation of the night and the day are signs for men of understanding—Those who remember Allah while standing, sitting, or lying] on their sides and contemplate [the wonders of] the creation of the heavens and the earth, [saying], 'Our Lord, You have not created this in vain, exalted are You [above such a thing]; save us [then] from the punishment of the Fire.'" (3:190-191)

In these and numerous other verses, Allah the Almighty addresses "people of understanding" because they are the ones—with the

10 Tafseer Al-Baghawee, 1/146; Tafseer Abu Hayyaan, 2/52; and Tafseer Al-Khaazin,

1/148. 11 Reported by Al-Bukharee and Muslim.


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exception of everyone else—who tend to better understand His commands and prohibitions and ponder over His signs and proofs.12

This can only be indicative of the fact that Allah the Almighty likes His slaves to employ their intellect with a view to comprehending the wisdom and ultimate benefits behind His commands and judgements, which all point to His perfection as well as the perfection of His wisdom, praise, justice, and unbounded mercy; and whoever employs his intellect in this manner deserves to have the privilege of being among 'men of understanding'.13

Therefore, whoever denies the benefits of the law of qisaas after this explanation is definitely devoid of intellect, heart, mercy and compassion14, because it is only men of understanding who consider consequences of their actions and shun anything that is bound to lead to punishment in this life or in the life to come. The foolish, reckless people, on the other hand, do not consider the consequences of their actions in a fit of anger of folly.15

The meaning of the last part of the verse, namely, "that you may become righteous" is that He has prescribed the law of qisaas and demonstrated the wisdom behind it for the sole reason of attaining taqwa. Taqwa, translated here as 'becoming righteous', actually means providing a 'shield' between oneself and Allah's punishment; this can be done by obeying His commands and avoiding His prohibitions.16

Scholars have expressed different interpretations regarding the word 'taqwa' in this verse. At-Tabaree said, "…so you may fear the qisaas

punishment and thus refrain from killing."17 Al-Baghawee said, "…so that you may refrain from killing for fear of being subjected to the qisaas

12 Tafseer At-Tabaree, 3/123. 13 Tafseer As-Sa'dee, p. 83. 14 Tafseer Al-Manaar, 2/133. 15 Tafseer Ash-Shawkaanee, 1/243; Fath Al-Bayaan, 1/286. 16 This is the most comprehensive definition for the word taqwa, which has also

other meanings mentioned by Qur'an exegetes with regard to the interpretation of the verse "a guidance for the righteous" (2:2). See also Tafseer At-Tabaree, 1/237-139; Tafseer Ibn Katheer, 1/153-155; and Tafseer Ash-Shawkaanee, 1/245. 17 Tafseer At-Tabaree, 3/123.


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punishment."18 Al-Qurtubee said, "…You refrain from killing and thus be saved from having the qisaas punishment inflicted upon you…"19 Ibn

Katheer said, "…so that you may be deterred and thus avoid infringing on the rights that Allah has declared inviolable and shun sins."20

Muhammad Rasheed Ridhaa said, "…so that you avoid assaulting others and thus refrain from shedding blood."21 Sheikh As-Sa'dee said, "Whoever knows his Lord and comes to realise the great secrets, wonderful wisdom and lofty signs that are in His religion and law will certainly obey Allah's commands and realise the gravity of the acts He has declared sinful and thus shun them."22

18 Tafseer Al-Baghawee, 1/146; Al-Khaazin (1/148) and Ash-Shawkaanee (1/88)

expressed a similar view in the interpretation of this verse. 19 Tafseer Al-Qurtubee, 2/357. 20 Tafseer Ibn Katheer, 1/431. 21 Tafseer Al-Manaar, 2/133. 22 Tafseer As-Sa'dee, p. 83.


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TOPIC THREE Grandeur and Eloquence of the Verse

The Qur'an was unquestionably revealed in plain and clear Arabic tongue without any crookedness therein, thus challenging and establishing massive evidence against those endowed with eloquence in the midst of whom Prophet Muhammad (peace be upon him) was sent. The celebrated eloquent Arabic saying Al-Qtl anfaa mi-an-qatl (literally, killing prevents killing)23 on which the Arabs used to pride themselves reached the peak of rhetorical expression. However, a quick look at part of the verse under study, namely "And there is [a saving of] life for you in al-Qisaas" will reveal that the latter surpasses the former in many ways. It is not surprising for this to be the case as it is impossible to compare Allah's speech with that of His creatures. In fact, Allah's speech is one of His attributes, and therefore it is not possible to compare the attributes of Almighty Allah with those of His creatures, for the superiority of His attributes is analogous with His superiority over them, as Allah states, There is nothing whatsoever like Him, and He is the All-Seeing, the All-Hearing." (42:11)

The verse under study reveals the grandeur as well as the miraculous expression in the verse, both in its meaning and structure, as Ibn Al-Qayyim said, "Just reflect on the grandeur, brevity, eloquence, fluency and great significance which characterise the words of the Sharee'ah… and compare all of this with their saying "killing prevents killing" to realise the huge difference between them and recognise the magnificence and grandeur of the Qur'an."24

The Qur'an exegetes (mufassiroon) as well as scholars from different Islamic disciplines have mentioned in their writings that this part of the

23 See Tafseer Ibn Hayyaan, 2/15, Tafseer al-Manaar, 2/131 and Tafseer bn Katheer, 1/431. For an in-length discussion of this saying, see Wahy al-Qalam by

Mustafa Saadiq ar-Raafi'ee, 3/408-410. 24 Miftaah Daar As-Sa'aadah, 2/523-525.


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verse surpasses the aforementioned Arabic saying in numerous ways25, which I will summarise in the following ten points: 1. The verse has fewer letters that those of the Arabic saying; the part

of the verse has only twelve letters, whereas the Arabic saying contains fourteen letters.

2. The surface structure of the Arabic saying is somewhat contradictory in that it makes something the reason behind the prevention of the same thing, which is impossible. Killing must be specified with one of its kinds, by saying 'Killing as a way of equality in punishment (qisaas) is more likely to prevent killing". This constraint on killing in general, however, does exist in the Qur'anic verse.

3. 'Preventing' killing, as the Arabic saying states, does not necessitate life. Conversely, the verse stresses life, which is the desired objective; stressing the primary objective is more appropriate than stressing other than it.

4. The Arabic saying repeats the word "killing", whereas there is no repetition in the verse. It is obvious that a text without repetition is far better than one with repetition.

5. Killing could be done unjustly, in which case it does not prevent killing but rather increases it; qisaas, however, is done justly.

6. Unlike the word "qatl", which signifies killing in general, the Arabic word "qisaas" signifies equality because it is based upon justice, as opposed to general killing.

7. Qisaas includes the taking of life and matters short of life, as Almighty Allah says, "…and for [other] injuries equitable retaliation." (5:45) The Arabic saying mentions only killing.

8. The fact that the Arabic word "life" in the verse is used as an indefinite noun (without a definite article) denotes 'increase and growth', thus implying that such a life is long and full of peace and prosperity; in fact, it is for the sake of securing peace that people spend a great deal of money and time and acquire weapons. If

25 See for example Al-Jassaas' Ahkaam Al-Qur'aan, 1/197; Tafseer Al-Fakhr Ar-Raazee, 5/56-7; Tafseer Abu Hayyaan, 2/15-6; Ad-Durr Al-Masoon, 2/257; Al-Itqaan fee 'Ulom Al-Qur'aan, 2/72-3; Tafseer Al-Aloosee, 2/51-2; and Tafseer Al-Manaar,

2/131-33.


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every person knows that he will be killed if he kills another person, people will undoubtedly refrain from killing, and will thus live in peace, occupying themselves with matters pertaining to this worldly life and the hereafter. Therefore, life cannot be realised in full without the implementation of the law of equality in punishment (qisaas).

9. The verse comprises a famous type of Arabic eloquence known as tibaaq, or antithesis, in which case antonyms are used. The Arabic saying uses killing twice, but the verse uses antonyms to deter criminals even more from acting irresponsibly.

10. The Arabic saying is elliptical in that the sentence provides a comparative construction with only the elative, or comparative noun, without the noun to be compared with. The Arabic saying without such ellipsis would read, "Killing is bound to stop killing more than leaving killing". The Qur'anic verse, on the other hand, does not have such implication of a missing syntactical part.

These points clearly prove beyond any shadow of doubt the grandeur and eloquence of the verse under study, which is part of the Qur'an about which Almighty Allah says, "Say, 'If mankind and the jinn were to gather together to produce the like of this Qur'an, they

could not produce the like thereof, even if they backed up one another with help and support.'" (17:88)


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TOPIC FOUR The Person Entitled to Impose the

Punishment of Qisaas

Allah the Almighty informs us that in qisaas there is a saving of life.

The question that arises here now is, who has the right to impose the punishment of qisaas among Muslims? Muslim scholars are unanimously agreed that qisaas is the sole duty of the Muslim ruler (imam), and hence no one else is entitled to impose it for himself or for others without the Muslim ruler. The following are some of their statements: 1. Ibn Abee Shaibah reported from Muhammad Ibn Seereen who said

that Omar ibn Al-Khattab (may Allah be pleased with him) wrote to officers in charge of groups of soldiers saying, "Do not kill anyone (i.e. by way of qisaas) without me being present."26

2. Ibn Abee Shaibah reported from Ibn Seereen who said, "No act of qisaas relating killing was carried out without [the presence of] of the leader of the faithful (i.e. the ruler)."27

3. Al-Qurtubee said, "There is no disagreement [among scholars] that qisaas regarding killing is to be imposed by Muslim rulers; they have been commanded to impose the qisaas and execute the penalties [of the Sharee'ah described in the Qur'an].28

4. Al-Qurtubee also said, "Muslim jurists are unanimously agreed that no one is entitled to carry out the punishment of qisaas without the ruler; in fact, people are not allowed to avenge themselves on others, as this is the [sole right of the] ruler or whomever he nominates to execute it."29

5. Al-Maawardee said, "Once the punishment of qisaas—with regard to killing or [the amputation of] a certain part of the body—has

26 This report was cited by Ibn Abee Shaibah in his Musannaf, and Al-Baihaqee in his Sunan. See also Mawsoo'atu Fiqhi Omar ibn Al-Khattab, p. 275. 27 Reported by Ibn Abee Shaibah in his Musannaf, Book of Blood Money, no. 7959. 28 Tafseer Al-Qurtubee, 2/245. 29 Ibid., 2/256.


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been established, [the victim's] relatives are not allowed to execute it without the ruler's permission."30

6. Ibn Qudaamah said, "No one is entitled to impose the punishment [of qisaas] except the ruler or his deputy; for it is the right of Allah the Almighty that requires personal reasoning (Ijtihaad) and injustice is highly likely to accrue [without him]. Therefore, it must be entrusted to Allah's vicegerent to carry it out among His slaves. The Prophet (peace be upon him) also used to carry it out himself during his lifetime, and [the rightly-guided] caliphs after him also did the same."31

These statements clearly indicate that scholars are all agreed that the imposition of the punishment of qisaas is the ruler's prerogative, and

therefore no one should carry it out in his stead because this is bound to lead to chaos, as Sheikh Abdul-Azeez ibn Baaz said, "Whomever has been wrongfully killed, then his heirs can claim the punishment of qisaas on the killer by observing the conditions set by the Sharee'ah and through the rulers. It is not permissible if people assault one another without resorting to the rules established by the Sharee'ah [in this regard]; otherwise, this will lead to iniquity, chaos and wrongful killing."32 Some adherents of the Shaafi'ee and Hanbali schools of thought maintain that it is not permissible to execute the punishment of qisaas except in the presence of the ruler or his deputy, because it is not guaranteed to avoid iniquity with the intention of quenching one's thirst for revenge.33 They said this with a view to securing human life, preventing bloodshed, warding off disorder and maintaining security.

The Muslim ruler is honour bound to impose the punishment of qisaas on the culprit once the conditions for doing so are met and the victim's next of kin demand it, as it is their right to do so.

30 Al-Ahkaam As-Sultaaniyah, pp. 235-236. 31 Al-Kaafee, 5/429. 32 Majallat al-Buhooth Al-'Ilmiyyah, 1417 AH, Issue 49, pp. 135-6. 33 See Al-Mughnee, 8/690, Al-Majmoo', 18/448 and Ar-Rawdh Al-Murabba', 7/202.


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TOPICS FIVE Positive Effects of Implementing Qisaas

Punishment in Society

Islam teaches us that Allah the Almighty is Most Wise and that all His commands and prohibitions are behind a great deal of wisdom. However, some aspects of such wisdom might not be perceptible to us because He reserves the right to keep its knowledge hidden from us for testing purposes. Other aspects of this wisdom are apparent, such as the punishment of qisaas, which He has prescribed for apparent reasons

contained in Allah's statement, "And there is [a saving of] life for you in al-Qisaas (the Law of Equality in Punishment), O men of

understanding, that you may become righteous.” (2: 179) Qisaas, therefore, has numerous advantages for both the individual

and society at large. Some of these advantages are summarised below: 1. To secure society against crime

Implementing the law of qisaas without doubt protects the individual and society against crime because it makes people aware of other people's rights and provides a solid foundation for maintaining peace and security in society. If every member of society becomes aware of the fact that he will definitely be killed if he kills others, he will certainly refrain from ever thinking of committing crimes.34 As Qataadah said, "How many a man has intended to commit a heinous crime which he would have committed had he not been aware of the punishment of qisaas. Allah, however, has kept His slaves away from assaulting one another through it. There is nothing which Allah has commanded but there is good in it; [conversely,] there is nothing which He has prohibited but it must be evil; and Allah is fully aware of all that which benefits His slaves."35

Ibn Al-Qayyim also said, "Had it not been for qisaas, the world would have become corrupted, and people would have killed one

34 See At-Tadaabeer Al-Wiqaa'iyyah fee Al-Qatl, p. 246. 35 See As-Suyyutee's Ad-Dur Al-Manthoor, 2/159.


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another and avenged themselves on the killers. [The punishment of] qisaas, however, has serves to ward off the evil of having the audacity to

kill by either initiating killing or taking revenge on the killer."36 2. To establish justice among all members of society

Punishing the culprit through the law of qisaas—once the conditions for implementing it are met—undoubtedly serves to establish justice between all members of society; no one would dare assault others due to his high social standing, wealth or power, for all members of society are on equal footing before the law. 3. To punish none but the culprit

In Islam, punishment is to be inflicted only upon the culprit, as the Qur'an clearly states, "…no bearer of burdens can bear the burden of

another." (6:164) This is in total opposition to what the Arabs in the pre-Islamic era, or Jahiliyyah, used to do. In those days, they would punish the culprit as well as others with him if he turned out to belong to a weaker tribe; however, if the culprit belonged to a more powerful tribe, he would not be punished. Had the law of qisaas been established in

their midst, the fierce battles that brought total destruction would not have broken out among them37. The Qur'anic verses on qisaas were revealed to ward them off.

When the Arabs embraced Islam, they renounced all the abominable acts they used to commit in Jaahiliyyah, in total obedience to Almighty Allah and in compliance with the Prophet's saying in the course of the Farewell Pilgrimage, "It is unlawful for you to shed the blood of one another or [unlawfully] take the property of one another. They are as unlawful as shedding blood on such a day as today and in such a month as this sacred month and in such a sanctified city as this city of yours. Behold! All practices of Jaahiliyyah days are now under my feet. The blood-revenge of Jaahiliyyah days is remitted. The first claim on blood I

36 A'laam Al-Muwwaqqi'een, 2/122. 37 The Basoos Battle, for example, which took place between the tribes of Bakr and Taghlib, lasted for forty years as a result of the killing of Kulaib ibn Rabee'ah who had not been avenged on his killer. You can see the details of this battle in Al-'Iqd Al-Fareed, 5/212-268.


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abolish is that of Ibn Rabee'ah ibn Al-Haarith who was nursed in the tribe of Sa'd and whom Hudhail killed."38 4. To inflict punishment according to the crime

The act of punishing the culprit in the same way he inflicted punishment on the victim undoubtedly provides total justice, unless the act he committed was not forbidden. It is only in this way that the significance of qisaas is completely realised39. For when the culprit knows that he will surely be punished in the same way he has punished another person, he will most probably avoid committing the crime in the first place.40 5. To take account of the psychological state of the victim's relatives

The law of qisaas provides a sure cure for the rage in the hearts of the victims' relatives and serves to remove any ill feelings towards the culprit. Once this punishment has been executed after demanding it, they become calm and composed and all feelings of resentment and animosity are dissipated. Allah the Almighty has given authority to the relatives of the victim over the culprit in order to remove the feelings of rancour they find in their hearts but without exceeding the prescribed limits in taking life. Allah the Almighty says, "And whomever is killed wrongfully—We have given his heir authority [to demand qisaas or to

forgive], but let him not exceed limits in [the matter of] taking life; for he is helped [by the law]." (17:33)

In fact, many cases of taking others' lives unlawfully or by exceeding the limits have arisen due to neglecting the opinion of those entitled to demand the punishment of qisaas to be inflicted on the killer. This is sure to make people seek to take the law into their own hands and take renege on the killer to give vent to their anger, thus bringing about chaos and triggering off a wave of killings in society.41 6. To purify the culprit through qisaas

By implementing the law of qisaas, the culprit is purified and cleansed of the felony he has committed, for Allah is so Just that He does not punish him twice [in this life and the hereafter] once he has repented

38 Reported by Muslim, Book of Hajj, no. 1218, on the authority of Jabir ibn Abdullah. 39 Miftaah Daar As-Sa'aadah, 2/524. 40 Athaar Tatbeeq As-Saree'ah Al-Islaamiyah, p. 138. 41 Al-Fiqh 'Alal-Madhaahib Al-Arba'ah, 5/262.


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of his sin. Ibn Al-Qayyim said, "Allah's mercy and extreme kindness have reached a high degree as to make such punishments a form of expiation for those who commit felonies as well as a purification for them; for this which will exempt them from being blamed for such crimes when they stand before Him [on the day of Judgement], especially if they have displayed sincere repentance after committing them; so He has showed them mercy by these punishments as forms of mercy in this life and in the life to come."42

The Prophet (peace be upon him) also said, " Swear allegiance to me that you will not associate anything with Allah, that you will not commit adultery, that you will not steal, that you will not take any life which it is forbidden by Allah to take but with [legal] justification; and whoever among you fulfils it, his reward is with Allah; and whoever commits any such thing and is punished for it, that will be all atonement for it. And if anyone commits anything and Allah conceals [his faults], his matter rests with Allah. He may forgive if He so desires, and He may punish him if He so desires."43 This, however, is the right of Allah and that of the victim's relatives. As regards the victim's right, it is one of his rights which he will demand on the Day of Judgement and will ask, O lord, question this [person] on what grounds he had killed me." It may be the case that Allah the Almighty will bestow his generosity on him to his satisfaction. 7. To give life to the individual and society at large

Indeed, there is a saving of life in the establishment of the law of qisaas, and this comprises all aspects of life, religious, social and economic. For once people feel safe from any kind of harm, they set about doing their everyday life activities in total peace without fear of being assaulted in any way.

In fact, being a form of observing uprightness and righteousness, the implementation of qisaas is bound to bring about numerous blessings, as Almighty Allah says, "And if the people of [those] towns had believed and been righteous, We would have surely bestowed upon them blessings from the heaven and the earth." (7:96)

42 A'laam Al-Muwwaqqi'een, 2/115. 43 Reported by Al-Bukharee, Book of Faith, No. 18, and Muslim, Book of Punishments, no. 1709.


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He also says, "And if they had kept to the right path, We would have certainly

provided them with rain in abundance." (72:16) Indeed, implementing one single law of punishment which

Almighty Allah has prescribed is better than being provided with rain for forty days, as the Prophet (peace be upon him) said, "Implementing one of Allah's laws of punishments is better than all the rainfall for forty days in the land of Allah the Almighty."44

A quick look at the state of affairs in the Kingdom of Saudi Arabia will reveal beyond any shadow of doubt that the positive effects of implementing the law of qisaas is obvious. Before its founding, the kingdom was the scene of crimes of all types; looting and killing was the norm, and people were always in a state of fear of being attacked. Now, after and peace and security have been established, people are engaged in developing the country, quite assured that their blood, property and honour are safe. A person can safely travel north, south, east or west without fearing for his life from highway thugs or attacks on his life. In this way, it has set a good example of having fewer crimes than anywhere else, by Allah's grace.

44 Reported by Imam Ahmad in Al-Musnad, 14/351, An-Nassa'ee in As-Sunan, Ibn Majah in As-Sunan, and has been categorized as saheeh (authentic) by the famous hadeeth scholar Sheikh Al-Albaanee.


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TOPIC SIX Misconceptions levelled against the

punishment of qisaas

Allah the Almighty informs us in this verse that there is a saving of life in the punishment of qisaas, and that it includes all aspects of life, religious, social and economical, but the Ummah's enemies, past and present, raise doubts about this form of punishment and incessantly level fallacies and misconceptions against it. The following are some of the most well-known fallacies: a. The law of qisaas represents destruction of human life in return for

destruction; there is no saving of life by killing the killer, and doing so only leads to more killing by having two persons killed.

b. The law of qisaas represents virtually certain destruction, and the so-called deterrence theory is simply fallacious and illusory.

c. The qisaas punishment is in total disagreement with human rights; in fact degrading to the humanity of the person punished.

d. This form of punishment is ghastly and appallingly shocking and may emotionally traumatise the relatives of the perpetrator sentenced to the punishment of qisaas.45

e. The perpetrator may be suffering from a psychiatric disorder and thus needs to see a psychiatrist instead of being killed.46

These misconceptions can be refuted through a brief, general reply

as well as a detailed reply to each one of these fallacies. With regard to the brief, general reply, we can simply say that the

one who has prescribed such punishment is the Knower of the seen and the unseen, the best of judges, who comprehends and encompasses all things in His knowledge, who knows what was, what will be, what was

45 See Manhaj al-Islaam fee Mukaafahat al-Jareemah, Vol. 2, p.717. 46 Manhaj Al-Qur'aan fee Himaayat al-Mujtama' minal-Jareemah, Vol.2, pp. 299-300


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not, and what would have been if it was, and whose knowledge fully comprehends all that benefits His slaves, whether hidden or apparent.47

His judgement is by all means the best and is certain to benefit His slaves in this life and the hereafter, as Almighty Allah says, "Then is it the judgement of [the time of] ignorance they desire? But who is better than Allah in judgement for a people who are certain [in faith]?" (5:50)

How then can we seek an ignorant judgement and leave the judgement of the Best of judges, whose judgements do not change and perfectly suit all times and places?

This reply should suffice to refute the aforementioned fallacies, but we will still provide the following detailed replies to each fallacy. a. The fallacy that the law of qisaas represents destruction of human life

in return for destruction, as doing so only leads to more killing by having two persons killed is simply baseless. Those who raise such a fallacy put evil and good on an equal footing, which no person with a sound mind would approve of, for how can we equate killing by way of transgression and injustice and killing by way of equality in punishment? Therefore, even though killing the killer represents his destruction, the common good requires that he be destroyed so that his evil will not spread in society. All people with common sense are agreed that destroying a part for the sake of the safety of the whole is highly commendable. By analogy, a doctor may deem it fit to amputate a limb affected by gangrene, a condition in which one's flesh decays in part of the body, in order to save the whole body. The killer is just like this affected limb, whose continued existence will only lead to more killing and destruction in society.

b. The misconception that the law of qisaas represents virtually certain destruction, and the so-called deterrence theory is simply fallacious and illusory is also ungrounded, It is true that punishment by way of qisaas brings about certain destruction of life, but it is destruction of only this limb whose survival more often than not brings about death and destruction. The deterrence theory is not illusionary, as some misinformed people claim. For nothing will serve better to dissuade the offender and others from repeating the crime than

47 See A'laam al-Muwwaqqi'een, Vol. 2, p. 120.


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punishment. If the person who intends to kill another person knows about the pain that will be inflicted on him if he commits the crime, he will by no means contemplate killing in the first place. Therefore, if he has no religious deterrent, fear of the severe punishment will without doubt deter him from committing the crime.

c. The claim that the qisaas punishment is in total disagreement with human rights and its implementation is degrading to the humanity of the person punished is largely speculative. Those who make such unsubstantiated claim think only of the criminal's right at the expense of the entire society. It is the view of Islam that even if the criminal is killed, his legal right to be proficiently killed still has to be preserved. The Prophet (peace be upon him) said, "Allah has prescribed ihsaan (proficiency) in all things. Thus if you kill, kill well, and if you slaughter, slaughter well."48 Another right which can be preserved for him is that his body after execution can be washed in accordance with the Islamic injunctions of preparing the dead for burial, shrouded and buried in a Muslim graveyard. His personal property can lawfully be bequeathed to his legitimate heirs and he still has the privilege of having others to pray to Allah to forgive him and have mercy on him. It is clear, therefore, that this criminal, despite his heinous crime, is still considered Muslim, and the Islamic Law (Sharee'ah) preserves his legal rights in full; it also secures the right of the victim as well as that of his relatives and protects society against his evil deeds. When people become aware of the horrible fate of the criminal, they become deterred to kill in order to avoid meeting the same dreadful fate, and so society becomes safe and secure.

d. The claim that this form of punishment is brutal and appallingly shocking and may emotionally traumatise the relatives of the perpetrator sentenced to this form of punishment is also groundless. In fact, the perpetrator gets only the punishment he deserves, and he gets punished only in the same manner he has inflicted punishment on the victim. What would the emotional trauma of the relatives of the victim be like when they see the perpetrator still at large, eating,

48 Reported by Muslim, Book of Hunting and Sacrificial Animals, no. 1955.


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drinking and enjoying life to the full? They would certainly be more traumatised than the relatives of the culprit would, and so they would surely think of ways of avenging themselves on the perpetrator, hence opening doors to chaos and disorder in society.

e. Regarding the fallacy that the perpetrator may be suffering from a psychiatric disorder and thus needs to see a psychiatrist instead of being killed, we can simply say that the Sharee'ah does indeed take into account the mental state of the culprit. Some of the conditions to be met before inflicting the punishment of qisaas on the culprit is that he has to be sane and must have attained puberty. The Prophet (peace be upon him) said in this connection, "The pen [of decree] has been lifted from three people: from a sleeping person until he wakes up, from a child until he reaches maturity and from an insane person until he regains his sanity."49 If, however, the so-called disorder is only used as a false claim so that he will be exempt from the punishment he rightly deserves, such a claim must not be taken into account, in which case the only efficacious method of treating him is to save society from his evil. If those who level such unfounded misconceptions are not willing to consider the Islamic position, then let them consider the Western views of social scientists, intellectuals and politicians that call for the use of capital punishment as a uniquely effective punishment for serious crimes.50

49 Reported by Abu Dawood in his Sunan, At-Tirmidhee in his Sunan, Ibn Maajah in his Sunan, Al-Haakin in Al-Mustadrak; and Sheikh Al-Albaanee classified it as saheeh (authentic). 50 See At-Tadaabeer Al-Waaqiyah minal-Qatli fee Al-Islaam, pp. 257-260.


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Conclusion

All praise is due to Allah with whose blessings the good deeds are perfected, and may Allah's peace and blessings be upon the one who was sent with clear signs until the Day of Resurrection.

The present paper has yielded numerous findings which I have summarized in note form as follows: 1. Definition of qisaas: to inflict punishment on the culprit in the same

manner he has inflicted it on the victim. 2. The punishment of qisaas relates to matters affecting life as well as

matters short of life. 3. This form of punishment provides real life for the Muslim Ummah. 4. People with sound minds are those who take into account the real

benefit of the Muslim Ummah, and so they are the ones duly addressed in the verse under study.

5. The Qur'an is characterized by inimitable eloquence and rhetorical speech and has thus surpassed the most eloquent saying the Arabs have ever expressed.

6. The implementation of the qisaas punishment is the ruler's prerogative, and thus it is permissible to implement it without obtaining the ruler's permission.

7. The punishment of qisaas is sure to bring about positive effects for the individual and society, some of which are:

To secure society against crime;

To establish justice among all members of society;

To punish none but the culprit;

To inflict punishment according to the crime;

To take account of the psychological state of the victim's relatives;

To purify the culprit through qisaas;

To give life to the individual and society at large. 8. The positive effects of implementing this form of punishment are

obvious in the Kingdom of Saudi Arabia, in that peace and security pervades the entire nation so much so that it now sets the example


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of a safe country with far fewer crimes than any other nation in the world.

9. The misconceptions about the qisaas punishment which Islam's enemies level against it today are not new.

10. Such misconceptions are futile because the One who has legislated the qisaas punishment is the Best of judges, and there is no judgement better than His in any way; for the qisaas He prescribes provides total peace and security for the entire society and serves to deter criminals from assaulting others for fear of being subjected to this divine punishment.

11. The Sharee'ah (Islamic Law) safeguards the killer's legal rights even after the qisaas punishment has been inflicted on him.

12. The qisaas punishment can only be implemented once a number of

conditions are met, and thus minors and insane people, among others, cannot be subjected to this form of punishment.

13. The Sharee'ah is practical and can thus be implemented at all times and in all places without exception. Now even non-Muslims in different parts of the world call for the implementation of capital punishment which they regard as a uniquely effective punishment that efficiently deters crime.

All praise is due to Allah, the Lord of the worlds, and may Allah's peace and blessings be upon our Prophet Muhammad, as well as upon his pure family and noble companions.

Documents

Qisas - Equality in Islamic Penal Law